Hicks trial defended despite concerns

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The Howard Government will pursue its concerns about the US trial of David Hicks, but is continuing to defend the process despite saying its procedures were not fair.

Concerns over the US military commission hearing of terrorism charges against the Australian would be raised formally with Washington, Foreign Minister Alexander Downer and Attorney-General Philip Ruddock said yesterday.

Mr Ruddock said the rules governing procedures for the trial were inadequate, but it would be inappropriate to detail the concerns publicly.

Hicks' US military lawyer, Major Michael Mori, said scrapping the commission in favour of a traditional court martial-style system was the only way to have a fair process.

"Anyone there in the courtroom would have seen that this military commission system is not a functioning judicial system," Major Mori told ABC radio.

Hicks and a second Australian, Mamdouh Habib, are being held at Guantanamo Bay, Cuba, accused of links with terrorists.

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Mr Downer said Government observers who attended the start of the hearing last month found its rules of evidence were undefined and "neither the prosecution nor the defence are exactly clear on how the rules are going to be applied".

"We have some concerns as a result of the reports that the observers made that the terms that we negotiated with the Americans are not being fully implemented, and so we're talking to the Americans about that," Mr Downer said.

"When it comes to Hicks and Habib, whilst on the one hand people will no doubt take the view that the military commission process should be fair, on the other hand, you know, you have to ask yourself what these people were doing in places like Afghanistan and Pakistan at the time they were picked up.

"We're not talking about the whole process being flawed. We're talking about technical issues here."

Mr Ruddock said the Government had affirmed a number of significant safeguards to ensure a fair trial in earlier negotiations with Washington.

The safeguards included the presumption of innocence, the right to silence, the right to defence counsel (including an Australian legal consultant) and a guarantee that Australians would not face the death penalty.

Hicks' Australian lawyer, Stephen Kenny, said any changes to the trial rules would delay the defence case.

Mr Kenny also said he was suspicious of the timing of the Government's objections to the way the commission was being run and speculated it might be to head off the pending report by Australian Law Council observer Lex Lasry, QC.

Hicks faces trial by military commission on January 10 for attempted murder, conspiracy and aiding the enemy.

Habib lawyer Stephen Hopper said the Government had done nothing for three years but was now "jumping up and down" about the issue, weeks out from the federal poll. The pair should be allowed to face a civilian court, he said.

Opposition Leader Mark Latham said the calls for improvements to the process demonstrated that Hicks should have been dealt with in Australia.

Mr Latham said Australia should have followed Britain and argued for its two terror suspects to be tried in their home country.